On August 5, 2020, the U.S. Court of International Trade (CIT) issued an opinion remanding the denial of the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) of a U.S. importer’s requests for exclusion of certain steel articles from Section 232 tariffs of 25 percent. In July 2019, JSW Steel (USA), Inc. (JSW) filed a complaint against the United States for denying its product exclusion requests for steel imports from India and Mexico, arguing that the denials were arbitrary and capricious and failed to articulate any reasoned explanation to support them. See Update of August 1, 2019.

In her opinion, CIT Judge Claire R. Kelly ordered: (i)  BIS to set forth as part of its certification of the record the steps taken to ascertain that the record is complete, including “identifying how it identified missing information and the existence of ex parte communications and, further, how it determined whether and to what extent any ex parte communications were or were not relied upon or referred to by [BIS] in making its determinations”; (ii) BIS to further supplement the record with any information that BIS determines “should be included in the record, inclusive of any information directly or indirectly considered by [BIS] in its determinations, as a result of explaining its record compilation process”; and (iii) a remand for “further consideration and explanation [BIS’s] denials of all twelve exclusion requests, in light of the completed record.” Judge Kelly denied JSW’s requests for discovery and a privilege log.

Judge Kelly’s opinion states that a remand is “warranted because [BIS’s] denials are devoid of explanation and frustrate judicial review” and that it “cannot be certain what record evidence, if any, [BIS] relied upon when both the BIS decision memoranda and [International Trade Administration] recommendation memoranda do not explain what information the sub-agencies considered, how it was weighed, or why the evidence compelled denial.” Judge Kelly criticized the generic and formulaic nature of the decision memoranda, noting that that they both “suffer from the same paucity of analysis”.

The case is JSW Steel (USA), Inc. v. United States, Court No. 19-00133, before the U.S. Court of International Trade.